February

Lawyers Journal

Access to justice is big loser in tort reform

By Kathleen M. O'Donnell

February 2005

As a profession, we stand for fairness, integrity and access to justice. We should be offended when policies are marketed and based upon lies and misrepresentations. Any such proposals should be an affront to all lawyers.

It is inconceivable that in the same world when in excess of 150,000 people were killed by the worst natural disaster in the history of humankind, where we are at war and thousands of poorly equipped soldiers face death daily and are away from their families and their jobs, where our country is split into red and blue states and is divided in a way not seen since the Civil War, where our national deficit is larger than at any point in our history, where the retirement system for most Americans will not be funded for the next generation, and where many people in the richest nation in the history of the world do not have health insurance and must choose between buying food and filling their prescriptions, our president returns from his holiday vacation and his first trip out of Washington in the new year is to the county where juries award the highest amount to plaintiffs in civil cases so he can discuss the topic foremost on his mind: tort reform. How and why did this issue become the president's priority and the topic of the first "economic summit" after his reelection?

Politics - pure and simple. In the 1980s, a conservative think tank developed a plan to ensure that within the next two decades the Republican Party would have the majority in the House, in the Senate, in governors' offices throughout the nation and in state legislatures. The idea was simple - follow the money. Those designing the plan asked a very pragmatic question: what group contributed the most to Democrats in public office? The answer - trial lawyers. Thus, the real tort reform movement was born. Destroy the ability of the major contributors to Democrats to make a living and you will destroy the ability of Democratic candidates to run successful campaigns. This plan is about to reach the pinnacle of success.

Those supporting and voting for the various "tort reform" proposals must understand that the genesis of these bills is political. In the past, conservative Republicans were the champions of states' rights. The measures before Congress federalize issues typically governed by state law. Philosophically, Republicans should oppose these measures.

The facts also do not support these proposals. Any serious discussion of the United States legal system would include the following facts from studies done by the Public Citizen, a consumer group:

The people who most take advantage of the legal system are the business interests lobbying to curtail citizens' legal rights: U.S. businesses file lawsuits four times more often than individuals, according to an analysis of states and counties that keep such data. Moreover, businesses are 69 percent more likely to be sanctioned by federal judges for filing frivolous lawsuits than are tort plaintiffs and their attorneys, according to an analysis of the 100 most recent cases where such sanctions were imposed.

The frequently cited study that contends lawsuits costs taxpayers well over $200 billion per year (the so-called "tort tax") has been repudiated by the nonpartisan Congressional Budget Office (CBO). According to CBO, the costs estimated by Tillinghast-Towers Perrin "merely" shift money from injurers to victims and thus are not true costs to society. These "costs" are actually the total cost of the liability insurance industry, and they would not disappear even if the legal system did not exist. Overall, 46 percent of the tort cost estimate is for payments made to injured victims for lost wages, medical care and pain and suffering. These costs are the result of injuries caused by defendants and would be borne by society anyway, through private health insurance, government programs and charities, or by being absorbed by victims and their families. And, 21 percent of the tort cost estimate is for insurance industry overhead.

Tort lawsuit filings have decreased 9 percent overall from 1992 through 2001, according to a joint tracking project of the Conference of State Court Administrators, the Bureau of Justice Statistics and National Center for State Courts. The filing data from 30 states represent a total of 74 percent of the U.S. population. When adjusted for population growth, tort filings declined by 15 percent, from 269 to 228 per 100,000 over that period.

According to independent researchers, the doctor population in states with increasing malpractice insurance premiums is rising - not declining. Further, medical malpractice costs are a very small fraction of overall health care costs and have virtually no effect on the rising costs of health care, and the administration's claims of $25 billion in "defensive medicine" costs per year have no basis in fact.

Whether we are Democrats or Republicans, we as lawyers, trained and ethically required to base our arguments on facts, should be offended by the rhetoric used to support the various tort reform proposals. There is simply no credible economic rationale - conservative or otherwise - for taking away the legal rights of consumers and patients who are harmed by the abuses of big corporations and the negligence of medical providers. More importantly, as lawyers, we must recognize this is an access-to-justice issue. The end result of many of the proposals would be to undermine the role of juries in civil cases and to close the courthouse door to indigent individuals. Lawyers must ask their elected representatives tough questions if they consider supporting the various tort reform measures. Lies and misrepresentations have been used to justify actions taken by the Bush administration that have resulted in tremendous human and economic costs. The same methods must not go unchallenged in pending legislative battles.